Gender Goals for International Law in 2015

VineshMistry

Gender and MDG's Infographic via United Nations Website

Gender and MDG’s Infographic via United Nations Website

2015 marks the end of the UN Millennium Development Goals (MDG). 8 goals were determined at the end of the 2000 UN Summit where all member states pledged to try and achieve these goals by 2015. The third goal saw the international community commit to pursuing gender equality and the empowerment of women. Now that these goals have come to an end, the post-2015 goals must seek to develop further on success of the MDG.

It is submitted that international crimes and the rights of women and other gender groups must be revisited in order to further pursue gender equality. It is important to highlight that the distinction between sex and gender. According to the World Health Organisation, sex refers to the two sexes; male and female. Gender, on the other hand, is much more qualitative and can relate to personal identity and can include the gay and transgender communities.

The Importance of Protecting Gender

Protecting gender groups is analogous to protecting minority groups. Macklem argues that protecting minority groups is important because it is the protection of human identity.[1] The protection of gender groups is, consequently, very similar because it protects the sexuality aspect of human identity. This aspect of identity has resulted in the creation of gender orientated culture and culture is a trait of minority groups that is protected by international law.[2] Therefore, sexuality, like ethnicity, religion and language, is a culture creating part of human identity that must also be protected.

The Necessary Developments in International Law

There are three areas within the protection of gender groups that should be revisited in 2015: international crimes, gender rights and women’s rights. Whilst all three could benefit from rejuvenation, it will be explained that it is practically difficult to get the international community to back some of these areas. This, nevertheless, does not preclude these areas from being achievable goals in the future.

International Crimes

The international judicial community has demonstrated a commitment to protecting gender. Following the Rwanda Genocide, the International Criminal Tribunal for Rwanda (ICTR) brought sexual violence within the ambit of international crimes. Most importantly, their definition of rape was gender neutral. The Trial Chamber in Akayesu found rape, ”as a physical invasion of a sexual nature, committed on a person under circumstances which are coercive.”[3] This is particularly advantageous for gender groups because rape is no longer limited by sex. Persecution on the basis of gender is also, fortuitously, criminally proscribed.[4] However, the persecution itself must manifest as “the intentional and severe deprivation of fundamental rights contrary to international law”.[5] If a gender group was attacked or killed because of their association to a gender group, their right to life protected by article 3 of the Universal Declaration of Human Rights is being deprived. However, if it was a traditional minority groups, this would be regarded as genocide; not persecution. Therefore, a post-2015 goal of international law would be to recognise the intentional killing of a gender groups as genocide.

Gender rights

What about the denial of right to gender culture? The protection of minority culture is enshrined under article 27 of the International Covenant on Civil and Political Rights and therefore, depriving it could also constitute persecution. However, depriving gender culture will never constitute persecution because, even though gender groups are protected by persecution, depriving gender culture is not a deprivation of a fundamental right contrary to international law. Clearly there is a gap in the protection of rights between gender groups and minorities. A charter of gender rights could address this gap. However, 2015 is unlikely to be the year where the international community introduces one. A charter will be an unachievable goal because it will not be universally accepted. Homosexuality is criminalised in over 70 countries and such groups are persecuted throughout the world. Hence, the world is not ready to attempt to confer gender rights.

Women’s rights

Whilst a covenant to encompass all gender groups is currently unrealistic, 2015 can be the year to better address women’s rights. The Convention on the Elimination of All Forms of Discrimination Against Women (‘CEDAW’) was adopted by the UN General Assembly in 1979 with the aim to promote equality between men and women.[6] However, the enforcement mechanism of CEDAW is incredibly flawed. Under article 18, state parties are required to report to the CEDAW Committee at least every four years on how the requirements of CEDAW are being met. Unfortunately, in some states where women’s rights are a concern, for example Algeria, reports are not being submitted. Clearly, this makes it incredibly difficult to actually protect women’s rights. The international community can use the law to take the next major step in promoting true gender equality and adopt a more robust women’s rights regime.

Conclusion

2015 does mark the end of the UN MDG but it also could be a year of change in the protection of gender groups. International criminal law does not yet fully protect gender groups because the international community is not yet ready to confer gender rights. Nonetheless, the fortification of women’s right could be a plausible goal for 2015. Obviously it will have its own practical difficulties when determining the content of rights and its enforcement mechanism. It is, however, a much more ascertainable gender goal for 2015 than creating a gender rights regime.

REFERENCES

[1] Patrick Macklem, ‘Minority Rights in International Law’ Legal Studies Research Series No. 08-19 p2

[2] Under article 27 of the International Covenant on Civil and Political Rights, ethnic, religious and linguistic minorities are shall not be denied inter alia the right to enjoy their culture.

[3] The Prosecutor v Jean-Paul Akayesu, Judgment, Case No. ICTR-96-4-T, 2 September 1998 [598]

[4] Rome Statute for the International Criminal Court (2005) article 7(1)(h)

[5] Ibid article 7(2)(g)

[6] Convention on the Elimination of All Forms of Discrimination Against Women 1249 UNTS 13 (adopted 18 December 1979, entered into force 3 September 1981) preamble

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